Surrogacy & Parental Rights Laws by State

Surrogacy & Parental Rights Laws by State

More and more women like you are choosing to become surrogates. As a result, surrogacy is surging in popularity. According to the American Society for Reproductive Medicine (ASRM), there were just over 2,800 births via surrogacy in 2015. Compared to the 738 surrogate births reported just 11 years earlier; there is little doubt that families of choice are becoming a more accepted and accessible path to parenthood across the United States.

The legal framework for the entire surrogacy experience hinges on the state in which the surrogate lives, and thus the state in which the baby will be born. While some state laws, like California, make it a fairly seamless process to use a surrogate to carry a child, other states are still working with laws about parenthood that are now quite outdated. This impacts both surrogates and intended parents.

While the ways in which families can be made has continued to evolve, lawmakers have not been as expedient to update verbiage about parental rights. For potential surrogates, these outdated laws prohibit agencies and intended parents from working with any woman residing in certain states. The result for many intended parents considering surrogacy has been confusion over the simple question of, “who are the legal parents?”

Many states have no legal framework surrounding surrogacy while others have muddled statutes. In some states, the law states that the woman who delivers the child will become the mother despite any biological connection (or lack thereof) to the child. To combat this issue, many fertility lawyers file what is known as a pre-birth parentage order. This document fills two primary goals. It frees the surrogate of any legal responsibility for the child and names the intended parents as the legal parents and guardians of the child. Both of these designations happen at the moment of birth.

Other states have similar statutes for reassigning legal parentage, but the process is not completed until after the child is born. In this case, the document is titled a post-birth parentage order. In any case, paperwork determining parentage will still be drafted prior to the birth, leading to the same result in the end; the intended parents are the guardians of the child at the time of birth.

These orders protect both parties in a surrogacy situation. While intended parents often worry that a surrogate may refuse to return the child post-birth, surrogates often fear that parents will refuse to take the child at the time of birth. In cases where parentage can be addressed and put into a legally binding contract prior to birth, each party has their emotional needs protected.

In addition to concerns over parental rights, same-sex parents have additional legal issues to consider along their path to parenthood. For example, until the Supreme Court ruled that all states must recognize and allow same-sex marriage, gay couples had limited access to surrogates. Prior to this ruling, gay couples could not work with surrogates in states that limited surrogacy contracts to married couples only. Despite this ruling, certain states remain closed to same-sex parents. As of 2017, Louisiana still sought to limit same-sex parents from using surrogacy to create a family by limiting surrogate contracts only to intended parents who are able to biologically supply both the sperm and egg used to create the embryo. This also impacts heterosexual couples who need to work with an egg or sperm donor. Other states have similar statutes stating that at least one intended parent must bear a biological connection to the embryo.

As the lawmakers struggle to keep up with the science of reproductive medicine, more and more politicians are being forced to address these issues. The result is often legislation that seeks to either legalize the practice of surrogacy, often with strict guidelines, or to create a firm law outlawing the practice. These ever changing laws, which will continue to vary from state to state, highlight the importance of working with a surrogacy agency and fertility law firm in order to ensure that you are only matched with intended parents who are legally able to work with you.

To read more on the differences in pre-birth and post-birth orders, please click here

Kim Bergman, PhD, a licensed psychologist of 26 years, has specialized in the area of gay and lesbian parenting, parenting by choice and third party assisted reproduction for over two decades. Dr. Bergman has created a comprehensive psychological screening, support and monitoring process for Intended Parents, Surrogates and Donors. She is the co-owner of Fertility Counseling Services and Growing Generations and is a member of the American Society for Reproductive Medicine, the American Psychological Association, the Los Angeles County Psychological Association, the Lesbian and Gay Psychotherapy Association, and the Gay and Lesbian Medical Association. She is on the national Emeritus board of the Family Equality Council. Dr. Bergman writes, teaches and speaks extensively on parenting by choice. Along with co-authors, she published “Gay Men Who Become Fathers via Surrogacy: The Transition to Parenthood” (Journal of GLBT Family Studies, April 2010). Dr. Bergman’s is the author of the upcoming book, Your Future Family: The Essential Guide to Assisted Reproduction (Conari Press 2019). Dr. Bergman created her own family using third party assisted reproduction and she lives with her wife of 35 years. Her two daughters are in college.